international employment law firm alliance L&E Global

Germany: A Threat of Sick Leave can Justify an Extraordinary Dismissal

Employees threatening their employers with sick leave is not an uncommon phenomenon. Additionally, to the loss of work force, the employer owes continued payment of remuneration. Therefore, an escape into sickness is a popular remedy. It is then often difficult to draw consequences because this is usually costly and not very promising for the employer.

However, consequences up to and including extraordinary dismissal are possible if an employee openly expresses such a threat. The employee had threatened to take sick leave after no agreement could be reached with her employer about the scheduling for the late shift. The employee then indeed submitted a certificate of incapacity for work for the week that had been controversial. The employer used this incident as a reason to issue an extraordinary notice of dismissal. Prior to this incident, the employee had been working 10 years without any complaints. However, the employee had already resigned from her job and was working her notice due to previous disagreements with colleagues.

In the case at hand, the court declared the extraordinary dismissal ineffective. Even though, the employee seriously violated her duties arising from the employment relationship by threatening to take sick leave in case of being assigned to the late shift, the dismissal was ineffective due to individual circumstances. If an employee tries to obtain an unjustified advantage by threatening their employer, this justifies an extraordinary dismissal in general. This particularly applies to the announcement of a sick leave in the case of an objectively non-existent illness. If an employee shows a general willingness to abuse the Continued Payment of Remuneration Act for own purposes, it no longer mattes whether the employee (by chance) actually becomes ill or not. A prior warning is then not required.

In the case at hand, it was nevertheless reasonable for the employer to continue the employment relationship for another month to the date of the resignation. The employee had committed a serious breach of duty. However, this was also caused by serious conflicts with colleagues. Considering the upcoming termination date of the long-term employment relationship, the court did not see any danger of repetition.

Even if this result is not very convincing, employers can take action against employee threats with all means at their disposal. Especially when employees threaten to take sick leave, employers can consider (extraordinary) dismissal. However, the mere suspicion that an employee is pretending to be ill, will usually not be a sufficient reason for dismissal.

Key Action Points for Human Resources and In-house Counsel 

Extraordinary dismissal is possible if employees threaten to take sick leave. However, as always, the overall circumstances of the individual case must be taken into account. Therefore, employers should consider and carefully examine all options. Employees will need to prove misconduct so that any incidents have to be carefully recorded.